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Discipline / Investigations

Even the best sexual harassment policy is useless without supervisor vigilance

07/06/2009

No sexual harassment policy will protect your company if what is going on in the cubicles or on the shop floor is blatantly offensive. It may not even matter that the offended or harassed employee didn’t follow your complaint policy and report the harassment to upper management. If she tried to talk to her immediate supervisor, that’s enough.

Make sure managers report sexual harassment

06/26/2009

The 3rd Circuit Court of Appeals has ruled that managers who actually supervise the work of subordinates have a duty to report sexual harassment when they learn of it. If they don’t, their employer can still be held liable.

When dealing with sexual harassment, fix the problem once and for all

06/26/2009

When an alleged sexual harasser is a supervisor, employers aren’t liable if there was no tangible employment action taken—the harassed employee wasn’t fired, demoted or otherwise punished—and the harassment was stopped promptly. But it doesn’t always work out so neatly in larger organizations.

OK to punish complainer if you find wrongdoing

06/26/2009

Workplace investigations sometimes open a can of worms. What if, for example, you find out that an employee complaining about sexual harassment had engaged in wrongdoing, too? Even if the wrongdoing is related to the underlying sexual harassment complaint, you can and should punish the employee for that.

EEOC seeks broad subpoenas? Ask to have them limited

06/26/2009

If the EEOC thinks a complaint it receives may have national implications and wants more information, it has the power to expand its investigation. The agency can seek subpoenas to demand a long list of records from your company as it seeks to develop a broader, perhaps national case against you. The good news is that federal courts generally will scale down the request if you ask.

Caution before offering ‘retire or be fired’

06/26/2009

Here’s something to keep in mind when you are tempted to give an employee a choice between termination and early retirement: He may allege that the retirement option was really a constructive discharge.

Declining to cooperate with investigation isn’t protected

06/12/2009

Before an employee can sue for retaliation, she has to show she participated in some form of protected activity—filing an EEOC or internal discrimination complaint, for example. But what about refusing to cooperate with an employer’s investigation?

Address harassment complaint with thorough investigation—and quick action to fix problems

06/08/2009

The U.S. Supreme Court hasn’t decided any big sexual harassment cases for several years. That doesn’t mean the problem has disappeared or that employers should slack off in their efforts to prevent and fix sexual harassment. Instead, review your training program to make sure sexual harassment gets the attention it deserves. Then be sure to investigate any harassment complaints you receive.

You don’t need a Sherlock Holmes investigation to deny ERISA benefits

06/05/2009

A federal appeals court has made it harder for employees to challenge your decision to deny a benefit covered by the Employee Retirement Income Security Act (ERISA).

Always investigate harassment before firing

06/05/2009

If you have ever been tempted to fire an alleged harasser just because you suspected the alleged victim might sue, consider this: The 2nd Circuit Court of Appeals has concluded that fear of being sued is no excuse for firing a suspected harasser without investigating.